Federalism

From Free net encyclopedia

Federalism is the idea of a group or body of members that are bound together (latin: foedus, covenant) with a governing representative head. That representative head can be a king or God (as in theology), or a thing or general assembly (as in politics).

In politics, federalism is the political philosophy that underlies a system of government in which sovereignty is constitutionally divided between a central governing authority and constituent political units (like states or provinces), creating what is often called a federation. Proponents are often called federalists. In Canada and Europe, "federalist" is often used to describe those who favor a stronger federal government (or European Union government) and weaker provincial governments. The same is historically true in the United States, with those who generally favor a confederation, or weaker federal government and stronger state governments, being called "anti-federalists". However, in recent years in America "federalism" has come to mean something closer to confederacy.

In theology, federalism is a synonym for basic Covenant Theology. It is a commonly used term in serious theological works since the 17th century (prior to the political use) and to this day, particularly among Reformed thinkers. Federalism describes the relationship between the first representative man, Adam, and those born of the flesh (i.e. ALL naturally-born mankind), and likewise between the second and last representative man, Christ, and those who are in addition born of the Spirit (i.e. ALL spiritually-born mankind; see John3:1-8 and Romans8:1-17). This doctrine is most clearly described in Romans5:12-21 and 1 Corinthians15:20-28, 42-49. In theology, the two parties (i.e. the representative head and the represented members) do not share sovereignty.

Another source is the Swiss constitution and the writings of two British observers, Albert Dicey and James Bryce, have been influential in the early theory of federalism. Dicey identified two conditions for the formation of a federal state. The first was the existence of a body of countries "so closely connected by locality, by history, by race, or the like, as to be capable to bearing, in the eyes of their inhabitants, an impress of common nationality." The second condition is "the desire for national unity and the determination to maintain the independence of each man's separate State".

The distribution of powers is an essential feature of federalism. In a classic work on the subject, Professor K. C. Wheare gave this test for federal government: "Does a system of government embody predominantly a division of powers between general and regional authorities, each of which, in its own sphere, is co-ordinate with the others and independent of them?" The result of the distribution of powers is that no one authority can wield the same amount of power as under a unitarian state.

Federalism and Democracy

The case for federalism is advanced by federalist theory, which argue that federalism provides a robust constitutional system that anchors pluralistdemocracy, and that it enhances democratic participation through providing dual citizenship in a compound republic.

The classic statement of this position can be found in The Federalist, which argued that federalism helps enshrine the principle of due process, limiting arbitrary action by the state. First, federalism can limit government power to infringe rights, since it creates the possibility that a legislature wishing to restrict liberties will lack the constitutional power, while the level of government that possesses the power lacks the desire. Second, the legalistic decision making processes of federal systems limit the speed with which governments can act.

The argument that federalism helps to secure democracy and human rights has been influenced by the contemporary public choice theory. It has been argued that in smaller political units, individuals can participate more directly than in a monolithic unitary government. Moreover, individuals dissatisfied with conditions in one State have the option of moving to another. Of course, this argument assumes that a freedom of movement between States is necessarily secured by a federal system.

The capacity of a federal system to protect civil liberties has been disputed. Often there is confusion between the rights of individuals with those of states. In Australia, for example, some of the major intergovernmental conflicts in recent decades have been the direct result of federal intervention to secure the rights of minority groups, and required limitations on the powers of state governments. It is also essential to avoid confusion between the constraints set by judicial review, the constitutional power of the courts to overrule the legislature and the executive, and federalism itself.

On the one hand, some U.S. states have regrettable histories of denying civil liberties to black people, women, and others. On the other hand, the laws and constitutions of some states have protected such minorities with legal rights and protections that exceed those of the U.S. Constitution and the U.S. Bill of Rights.
Template:USConlaw

Federalism and the U.S. Constitution

Before the U.S. Constitution was written, each American state was essentially sovereign. The U.S. Constitution created a national government with sufficient powers to unify the states, but did not supplant state governments. This federal arrangement, by which the central national government exercises power over some issues and the state governments exercise power over other issues, is one of the basic characteristics of the U.S. Constitution that checks governmental power. Other such characteristics are the separation of powers among the three branches of government--the legislative, executive, and judicial. The authors of the Federalist Papers explained in essays number 45 and 46 how they expected state governments to exercise checks and balances on the national government to maintain limited government over time.

Because the states were preexisting political entities, the U.S. Constitution did not need to define or explain federalism in any one section. However, it contains numerous mentions of the rights and responsibilities of state governments and state officials vis-à-vis the federal government. The federal government has certain express powers (also called enumerated powers), including the right to declare taxes, declare war, and regulate interstate and foreign commerce. In addition, the so-called elastic clause gives the federal government the implied power to pass any law "necessary and proper" for the execution of its express powers. Powers that the Constitution does not give to the federal government or forbid to the states—the reserved powers—are reserved to the people or the states[1]. The power of the federal government was significantly expanded by amendments to the Constitution following the Civil War, and by some later amendments.

Over time, the federal government has increased in size and influence, both in terms of its influence on everyday life and relative to the state governments. There are several reasons for this, including the need to regulate businesses and industries that span state borders, attempts to secure civil rights, and the provision of social services. Many people believe that the federal government has grown beyond the bounds permitted by the express powers. The U.S. Supreme Court has occasionally invalidated federal statutes (e.g., the Gun-Free School Zones Act in United States v. Lopez). However, most actions by the federal government can find some legal support among the express powers, such as the commerce clause.

Dual federalism holds that the federal government and the state governments are co-equals, each sovereign. In this theory, parts of the Constitution are interpreted very narrowly, such as the 10th Amendment, the Supremacy Clause, the Necessary and Proper Clause, and the Commerce Clause. In this narrow interpretation, the federal government has jurisdiction only if the Constitution clearly grants such. In this case, there is a very large group of powers belonging to the states, and the federal government is limited to only those powers explicitly listed in the Constitution[2].

European federalism

After World War II, several movements began advocating a European Federation, such as the Union of European Federalists or the European Movement, founded in 1948. Those organisations were influential in the European unification process, but never in a decisive way. Europe remains far from being a federation, although the European Union includes some characteristics of federalism. The European federalists have been campaigning in favor of a directly elected European Parliament, and were among the first to put a European Constitution on the agenda. Their opponents are both those in favor of a lesser role for the Union and those who wish the Union to be ruled by national governments rather than by an elected European government. Although federalism was mentioned both in the drafts of the Maastricht treaty and the Treaty establishing a Constitution for Europe, it was never accepted by the representatives of the member countries.

Governments in favor of a more federalist European Union are usually the German, Belgian and Italian governments. Those traditionally opposed to this idea are the British and French governments. Today, the Poles and Austrians are also increasingly noted for their opposition to a more federal union.

Federalism in Canada

In Canada, the system of Federalism is delineated by the division of powers between the federal parliament and the nation's several provincial governments. Under the Constituion Act of 1867, specific powers of legislation are alotted. s.91 of the Constitution Act gives rise to Federal authority for legislation, whereas s.92 gives rise to provincial powers. Conflict between which level of government has legislative jurisdiction over various matters has been a longstanding and evolving issue. Areas of contest include legislation with respect to criminal law,regulation of the economy and taxation.